FHJ v Public Guardian [2024] NSWCATAD 42

FHJ v Public Guardian [2024] NSWCATAD 42

The Tribunal affirmed the Public Guardian's decision because the proposal for appointment of permanent independent advocates was ambiguous, the scope of the proposed advocates' functions and their relationship with the Public Guardian's role were unclear, there was no direct evidence from the nominated advocates about their consent, understanding, terms, duration or proposed role, and the Tribunal could not be satisfied that the appointment was necessary or would promote FZZ's welfare and interests as required by section 4 of the Guardianship Act 1987 (NSW). The adjournment was refused because the likely delay pending appeals and possible joinder would be inconsistent with giving...

Jurisdiction
Australia
Judgment Date
21 February 2024
Procedural Posture
Administrative Review of a Decision by the Public Guardian Made in Its Capacity as Guardian Under the Guardianship Act 1987 (nsw) / Final Decision After Hearing; Decision Under Review Affirmed
Outcome
The Second Applicant's adjournment application was dismissed and the Public Guardian's decision under review was affirmed.
Legal Topics
['merits Review' 'public Guardian' 'refusal to Appoint Independent Advocate for Person Under Guardianship' 'section 4 Principles Under the Guardianship Act 1987 (nsw)' 'paramount Consideration of Welfare and Interests' 'adjournment Application' 'jones V Dunkel Inference in Tribunal Proceedings']
['administrative Law' 'guardianship' 'evidence'] ['merits Review' 'public Guardian' 'refusal to Appoint Independent Advocate for Person Under Guardianship' 'section 4 Principles Under the Guardianship Act 1987 (nsw)' 'paramount Consideration of Welfare and Interests' 'adjournment Application' 'jones V Dunkel Inference in Tribunal Proceedings']

Case Brief

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Procedural Posture

Administrative Review of a Decision by the Public Guardian Made in Its Capacity as Guardian Under the Guardianship Act 1987 (nsw) / Final Decision After Hearing; Decision Under Review Affirmed

Legal Issues

  1. 1 ["Whether the Public Guardian's decision to decline the proposal for appointment of a permanent independent advocate for FZZ was the correct and preferable decision." "Whether the Second Applicant's application to adjourn the hearing should be granted pending appeals about joinder and appointment of a guardian ad litem." "Whether the proposed appointment was sufficiently clear in scope and consistent with FZZ's welfare and interests." 'Whether AASS, Ms Grace Fava and Ms Nadia Napoletano had consented to act, understood the proposed role, and were suitable and qualified.' "Whether a Jones v Dunkel inference should be drawn from the Applicants' failure to call Ms Fava or Ms Napoletano."]

Ratio Decidendi

The Tribunal affirmed the Public Guardian's decision because the proposal for appointment of permanent independent advocates was ambiguous, the scope of the proposed advocates' functions and their relationship with the Public Guardian's role were unclear, there was no direct evidence from the nominated advocates about their consent, understanding, terms, duration or proposed role, and the Tribunal could not be satisfied that the appointment was necessary or would promote FZZ's welfare and interests as required by section 4 of the Guardianship Act 1987 (NSW). The adjournment was refused because the likely delay pending appeals and possible joinder would be inconsistent with giving...

Court Disposition

The Second Applicant's adjournment application was dismissed and the Public Guardian's decision under review was affirmed.

Orders

  • ['The disclosure of the names of the person under guardianship who is the subject of these proceedings, the First Applicant and the Second Applicant is prohibited under section 64 (1) (a) of the Civil and Administrative Tribunal Act 2013.' "The Second Applicant's application for adjournment of the hearing is...